Whether a person who occupies and uses a road installed under an urban planning project under the Urban Planning Act without obtaining permission to occupy and use the road under the former Road Act can collect an amount equivalent to the occupation and use fees for the occupancy period as unjust enrichment (affirmative); whether a procedure such as the public announcement of route approval or the public announcement of the road by applying mutatis mutandis the former Road Act is necessary for the purpose of becoming a road where the provisions of the former Road Act can apply mutatis mutandis (negative); and whether a road management agency needs to prepare and keep a road register when managing a road installed under an urban

In full view of the provisions of Articles 10 and 80-2 of the former Road Act (amended by Act No. 5894 of Feb. 8, 199) and Articles 10 and 10-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16510 of Aug. 6, 199), the road management agency, without obtaining permission for occupation and use, may collect an amount equivalent to the occupation and use fees for the occupation period from a person who occupies and uses a road under an urban planning project under the Urban Planning Act under Article 10-2 of the Enforcement Decree of the same Act as unjust enrichment. On the other hand, the road constructed by an urban planning project does not require the procedure such as the publication of the recognition of routes under Article 19 of the same Act or the publication of the mutatis mutandis application under Article 10(1) of the same Act in order to manage a road constructed by an urban planning project.

Articles 2, 10, 11, 19, 38, 40, and 80-2 of the former Road Act (amended by Act No. 5894 of February 8, 199), Articles 10 and 10-2 of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 16510 of August 6, 199)

Plaintiff

The head of Seongdong-gu Seoul Metropolitan Government

Seoul High Court Decision 99Nu1658 delivered on December 10, 1999

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

In full view of the provisions of Articles 10 and 80-2 of the former Road Act (amended by Act No. 5894 of Feb. 8, 199; hereinafter referred to as the "Act") and Articles 10 and 10-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16510 of Aug. 6, 199; hereinafter referred to as the "Enforcement Decree"), the road management agency may collect the amount equivalent to the occupation charges for the occupation period from the person who occupies and uses the "road constructed under an urban planning project under an urban planning project under an urban planning project under an urban planning project under an urban planning project under an urban planning project under Article 10-2 of the Enforcement Decree without permission for occupation and use. On the other hand, the road constructed under an urban planning project is not required to take the procedure such as recognition announcement of routes under Article 19 of the Act or the publication of the road to which Article 10(1) of the Enforcement Decree of the same Act shall apply mutatis mutandis to the road.

In light of the purport of the relevant laws and regulations and records, the court below recognized the fact that the road of this case constitutes "road constructed as an urban planning project under the Urban Planning Act" under Article 10-2 of the Enforcement Decree, and used it as the closing party and parking lot of the building owned by the plaintiff during the period of the judgment, and determined that the disposition of this case was legitimate by the defendant which imposed unjust enrichment under Article 80-2 of the Act against the plaintiff was based on the above recognition facts. It did not err in the misapprehension of legal principles as to "road constructed as an urban planning project under the Urban Planning Act" as pointed out in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)